The
Court referred this matter to the Honorable Caroline M.
Craven, United States Magistrate Judge, for consideration
pursuant to 28 U.S.C. § 636 and applicable orders of
this court. The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge recommending
the petition be denied.

The
Court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and pleadings. Petitioner filed objections to the
Report and Recommendation. The Court must therefore conduct a
de novo review of the objections in light of the
record and the applicable law.

Petitioner
asserted the following grounds for review: (1) there was
insufficient evidence he knowingly, intelligently and
voluntarily waived his right to counsel; (2) the trial court
erred in concluding his Miranda rights were not
violated; (3) his indictment was defective; (4) his
indictment contained an improper enhancement paragraph; (5)
he received ineffective assistance of counsel at trial
because counsel: (a) failed to object to the jury charge and
(b) failed to investigate an improper enhancement paragraph
in the indictment; and (6) he received ineffective assistance
of counsel on appeal because appellate counsel failed to
argue there was insufficient evidence to support the verdict.
Petitioner only objects to the Magistrate Judge's
conclusion regarding his first, second, fourth, fifth and
sixth grounds for review.

Ground
for Review 1

Petitioner
contends there was insufficient evidence that he knowingly,
intelligently and voluntarily waived his right to counsel. He
asserts the trial court failed to admonish him regarding the
nature of the charge against him, the statutory offense
included within it, the range of allowable punishment, the
possible defenses to the charge and any mitigating
circumstances.

Petitioner
raised this ground for review on direct appeal. The
intermediate appellate court stated that Derric McFarland, a
public defender, was appointed to represent petitioner.
However, on the day of jury selection, petitioner informed
the court he wished to represent himself. In allowing Dolph
to represent himself, the trial court determined
petitioner's level of education and his mental competency
and warned him that he would be required to comply with the
applicable rules of evidence and procedure. In rejecting this
ground for review, the intermediate appellate court stated:

We find that the record contains proper admonishments
concerning pro se representation and all necessary inquiries
to enable the trial court to assess Dolph's knowing
exercise of the right to defend himself. Dolph's
persistence in asserting his right of self-representation
despite the court's admonishments was all that was
required in order for the court to determine that the
assertion was made purposefully.

Dolph's only complaint, then, is that there is
“insufficient evidence that Appellant knowingly,
intelligently, and voluntarily waived his right to
counsel.” He asserts that “the admonishments that
were crucial to Appellant's case were those related to
the range of punishment, possible defenses to the statutory
offense, and any mitigating circumstances.”

Dolph complains that “the admonishments that were
crucial to [his] case were those related to the range of
punishment, possible defenses to the statutory offense, and
any mitigating circumstances.” To assess whether a
waiver [of the right to counsel] is effective, courts
consider the totality of the circumstances. This means that
courts must examine “the particular facts and
circumstances surrounding the case, including the background,
experience, and conduct of the accused.”

At a pretrial hearing, the trial court instructed Dolph that
he was “charged by indictment . . . with the unlawful
possession of a firearm by a felon, with two prior felony
convictions.” At the time, Dolph, represented by
counsel, expressly waived the reading of the entire
indictment. The State explained the range of punishment Dolph
would face at trial:

For the record, Your Honor, the State made an offer to drop
Mr. Dolph's enhancement paragraphs. He is double enhanced
as an habitual offender, making his punishment range a
minimum of 25 years to 99 or life. The State offered to drop
those two enhancement paragraphs and plead Mr. Dolph to eight
years. That offer expired last Friday. The State now makes an
offer to plead him to 10 years today. Otherwise, his minimum
will be 25 at trial.

McFarland asked Dolph if he understood the statement and the
court asked if he understood the offer. Dolph responded
affirmatively. Thus, the record shows that Dolph was aware of
the charges against him as well as the range of punishment.
Although Dolph complains that the trial court failed to
admonish him about possible defenses to the charges and
circumstances in mitigation thereof, there is no argument or
evidence that any viable defense or mitigating circumstance
existed or that the trial court had any information regarding
possible defenses or mitigating circumstances.

Waiver of counsel is valid only if the defendant has a broad
understanding of the entire matter. Dolph had full knowledge
of the proceeding and waived counsel after extensive warnings
...

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